that this subcommittee is holding on the oversight of the Occupational Safety and Health Act.

Many Members of Congress have already appeared before this committee. I want to assure you that your views will be given full consideration.

Mr. STEIGER. I join with the chairman, Senator, in thanking you very much for making the trip over to the House side. We are honored that you would appear. I know of your interest and consideration of this legislation and the work that you have done.

Your suggestions parallel suggestions that we have received from colleagues here in the House as well as a number of witnesses and it's been very helpful to us.

Senator CURTIS. I want to say I am always happy to return to the House. I spent a few years over here myself. I do have a hard time finding your committee room.

Mr. STEIGER. Thank you, Senator.

Mr. DANIELS. Our next witness is Hon. George C. Guenther, Assistant Secretary of Labor for Occupational Safety and Health. Is the Under Secretary here?

Well, we will have our next witness, Mr. Robert D. Moran, Chairman of the Occupational Safety and Health Review Commission.

You are accompanied by Mr. Alan F. Burch, a member of the Commission?

Mr. MORAN. That is right, Mr. Chairman, and also Donald F. White, who is the general counsel of the Commission.

Mr. DANIELS. Mr. Moran, you may proceed.

STATEMENT OF ROBERT D. MORAN, CHAIRMAN, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ACCOMPANIED BY ALAN F. BURCH, MEMBER OF THE COMMISSION, AND DONALD F. WHITE, GENERAL COUNSEL OF THE COMMISSION

Mr. MORAN. Thank you, Mr. Chairman.

Mr. Chairman and members of the subcommittee, I appear here today to discuss the activities and experience of the Occupational Safety and Health Review Commission, since it came into being on April 28, 1971, pursuant to section 12 of the Williams-Steiger Occupational Safety and Health Act.

The Commission, as you know, does not promulgate safety standards nor initiate, conduct, or order any inspections of workplaces. We are an adjudicatory body-a court. We have no control over either the kind or number of cases that come to us for decision.

All except two of the 1,400 cases filed with the Commission to date involve employers who are seeking relief from enforcement actions initiated against them by the Department of Labor. In these cases the employer is disputing the fact of the alleged violation, or the appropriateness of the penalty proposed against him by the Secretary of Labor, or he is seeking a modification of the abatement period provided for in the citation.

The employer initiates a case by mailing a notice of contest to the OSHA area director who issued the citation against him. The area. director then sends it to the Review Commission together with copies of the citation and notification of proposed penalty. Employees are

notified of the initiation of these cases and given the opportunity to participate as parties.

When the papers are received by the Commission, the case is docketed and all parties are notified. After pleadings are completed, the case will go to trial, unless a pretrial conference is decided upon. Trials are conducted by Review Commission judges. We have 45 judges at this

time.

We see that the parties receive a full-scale judicial hearing-as expeditiously and as conveniently as possible.

The total average elapsed time from the entry of a case to its final disposition after a hearing by one of our judges is only 114 days. This compares with 362 days at the NLRB. There is a provision in the law authorizing any single member of the Commission to order review of a decision rendered by one of our judges if he calls the case for review within 30 days of such decision. This has been utilized in only 10 percent of the decisions filed to date. In these cases the average time from entry of the case to final disposition by a decision. of the three members of the Commission is currently 198 days.

We are one of the few Federal Government agencies which conducts nearly all of its program activity outside of Washington, D.C. All our trials are conducted in the community where the alleged violation took place, if adequate courtroom facilities are available there. If not, the nearest available facility appropriate for the conduct of a trial will be used. No hearings are conducted in Washington unless this area is the place of the alleged violation. Our judges are stationed in nine locations throughout the country and they travel to various localities to conduct their hearings.

We have recently streamlined and simplified our rules in order to facilitate the procedures for contesting an OSHA citation. A plainly worded explanation or layman's guide-is being printed to make them more understandable. We do not require that parties before us be represented by counsel and many find it unnecessary to do so in order to prevail in the hearing.

În 40 cases where cited employers filed pleadings with us during July and August of this year, the pleadings came from lawyers in 15 cases and from company officials in the remaining 25.

The Commission's rules of procedure treat all litigants alike, including the Secretary of Labor. He has the burden of proving his case in open court. There is positively no presumption of regularity in the action initiated by the Secretary of Labor. If the burden of proving a violation of the act is not sustained, the Secretary's action is dismissed. This has happened in a number of cases.

All our final orders, whether resulting from a decision of one of our judges which is not called for review or resulting from a decision of the three Commission members after a review has been called for, may be appealed to the appropriate U.S. court of appeals, within 60 days.

As the proposal and assessment of monetary penalties is frequently the subject of misunderstanding and misconceptions, I would like to say a few words on this subject.

It should be clearly understood that the Labor Department cannot fine anyone or assess any penalties. They simply propose penalties. If the employer does not object, it becomes final. If he does object, the

matter goes to a hearing and the judge decides what, if any, penalty should be assessed. The Secretary's penalty proposal has no special standing when a case goes to hearing. The proposed penalty is simply what the complainant is seeking.

Out of 365 decisions filed to date, OSHA-proposed penalties have been modified in 167 of them-roughly 46 percent. In 13 percent of these cases, the judge increased the amount of the proposed penalty, while in 87 percent of them the proposed penalty was decreased.

In arriving at an appropriate penalty, the act sets forth four criteria which must be considered: The size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Approximately 95 pecent of the more than 30,000 employers cited by the Secretary of Labor to date have decided to correct the violation alleged and pay the amount of the penalty as proposed by OSHA without protest.

This indicates to me that the vast majority of cited employers either do not feel the action taken against them is unjustified, or it is not important enough for them to bring the case to a hearing.

I understand there are a large number of bills before this subcommittee which would amend the act in various ways. None of them has been submitted to the Commission for comment, and the Commission has no comment to offer on any of them.

The Review Commission, in my judgment, provides a forum for the adjudication of occupational safety and health cases that is fair, impartial, and convenient. We dispose of cases in an expeditious manner. Our staff is sufficient to handle our current caseload and we are adequately funded.

This concludes my presentation. Should there be any questions, those of us here at the witness table stand ready to respond.

Mr. DANIELS. Thank you, Mr. Moran.

In your opening remarks, Mr. Moran, you mention that there are 1,400 cases that have been filed with the Commission to date and all except two sought relief from enforcement actions initiated by the Department of Labor.

What was the nature of the other cases?

Mr. MORAN. Those are two cases where either an employee or a union contested the amount of time or the reasonableness of the time proposed by the Secretary of Labor to abate an alleged violation.

One is by the Atomic Workers Union, and the other was filed by an employee.

Mr. DANIELS. Then all the other cases involved a dispute with regard to the violation or the penalty?

Mr. MORAN. That is right, Mr. Chairman, or there is a petition to extend the abatement period.

Mr. DANIELS. Now, what percentage of those cases involved disputes over the amount of the penalty?

Mr. MORAN. Well, virtually all of them bring the penalty into contest. There are a few cases where the employer has no objection to the amount of the penalty but doesn't feel that the violation has been established, but I would say in better than 90 percent both the fact of the alleged violation and the amount of the proposed penalty are contested.

Mr. DANIELS. And in 87 percent of those cases you have modified the penalty and reduced it?

Mr. MORAN. Of the cases that have gone to hearing to date, about 46 percent the penalty has been modified, and of that 46 percent in 87 percent of those cases the penalty has either been eliminated, the proposed penalty has either been eliminated or reduced.

Mr. DANIELS. Have you brought these matters to the attention of the Secretary of Labor?

Mr. MORAN. All our decisions are served on the Secretary of Labor. Mr. DANIELS. What was the basis for the reduction of the penalty? Mr. MORAN. Well, there are various different bases. There have been a series of cases in which we felt that the penalty had only a proposed penalty and the nature of the violation had only an inconsequential effect on safety and health, such as the privacy of bathroom petitions and cleanliness of restrooms, and things of that nature, and penalties were running $35, $100, $150 a week, and we felt that these were not serving as a deterrent, and the alleged violation had no direct connection with occupational safety and health, and therefore we eliminated the penalty in those cases.

Mr. DANIELS. Is there a procedure for settling a case before your Commission?

Mr. MORAN. Yes, Mr. Chairman. In fact quite a few cases are settled before they go to hearing. I think the figure is close to 50 percent, because the employer has had a change of mind in most cases. He is ready to accept the Department of Labor's original proposal, and so long as he corrects the alleged violation and pays the proposed penalty, and that his employees are involved in the process and don't object to it, then we allow them to withdraw and do whatever the Department of Labor wanted them to do in the first place.

Mr. DANIELS. How would one go about a settlement? Is there any formal procedure established by the Commission or do you do that informally?

Mr. MORAN. Well, it's been done by development of a procedure which I don't think has been published in the Federal Register, but it's well known to the Department of Labor attorneys, and employers who wish to withdraw or otherwise dispose of their case without a hearing can contact us, and we'll contact the Department of Labor, and they'll be informed, and it's no great mystery, Mr. Chairman.

Mr. DANIELS. Has your Commission developed rules and regulations as to the procedure that is followed by the Commission in connection with the handling of these cases?

Mr. MORAN. Yes. We have had interim rules in effect for approximately a year now. Just yesterday we streamlined and simplified those somewhat. Those have not yet been published in the Federal Register, but we expect within a week or two more simplified rules will be in effect.

Mr. DANIELS. If a party to a proceeding before the Commission desires a copy of those regulations, will they be made available?

Mr. MORAN. We publish them in the Federal Register and supply them as a matter of routine to all parties to our cases. As soon as the case is docketed, we enclose in an envelope a copy of our rules of procedure.

Mr. DANIELS. I presume a number of these cases involve farmers and small businessmen. What has been the experience of the Commis

sion in dealing with these people? What do you find the situation to be with reference to their understanding of the law or any other complaints that they may have made to the Commission?

Mr. MORAN. I think, Mr. Chairman, that we give them every possible consideration. As I pointed out in my testimony, there is no requirement in our rules that they be represented by counsel, and many of them have come before us without counsel, and in those cases the judges who hear the case will render them some assistance.

In fact, a couple of weeks ago we vacated a violation because in our opinion the judge did not help the employer, who was not represented by counsel, to the extent we thought he should have, so I believe that we have assisted the small businessman who wants to contest an alleged violation quite a bit.

Mr. DANIELS. This committee has heard a number of complaints with regard to the application of the standards to various interests and particularly there is strong complaint from the small construction industry vis-a-vis heavy construction.

Do you from your experience in handling 1,400 appeal cases find that there is any merit to this complaint?

Mr. MORAN. I don't have any particular position to take on that, Mr. Chairman, since we have no authority to establish standards. We can interpret them, but we can't establish them, and it seems to me that is more of a legislative responsibility than a judicial responsibility.

Mr. DANIELS. Well. I realize that you cannot develop standards or promulgate, but on the other hand you must react to the complaint and particularly in assessing a fine or increasing it or reducing it, so you must have some reaction to the complaint of the appellant.

Mr. MORAN. Well, that puts me in a difficult position, and I'd really like to sidestep it if you will let me because I don't like to tell the Department of Labor what sort of standards they ought to develop because I just think it is beyond my jurisdiction.

Mr. DANIELS. Well, all right. How would you handle this situation: We heard a complaint to this effect, that under construction industry they require the posting of a handrail around floors. Now, the inspector goes out and he extends that ruling to a roof. Now, I am sure there is a big difference in the common understanding of the work floor, what the meaning of a floor is and what a roof is.

Suppose you had a case like that coming before you where one inspector cited an employer for failure to post a guardrail around a roof when the standards do not mention the word roof?

Mr. MORAN. Well, given that fact situation, I don't think I'd have any problems with it. I'd find no violation. If he was alleged with not complying with a standard that requires him to put a railing in a place where-well, if the standard required him to put a railing in place A, and he is alleged with a violation because he didn't put the standard in place B, then obviously no violation.

We have had a case of that nature, not in that exact situation, but where the Department had misapplied what we felt was the proper application of the standard.

Mr. DANIELS. Have you come across the situation where there is a misunderstanding as to the interpretation of a standard? Mr. MORAN. Would you repeat that, Mr. Chairman?